HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - C No. - 24943 of 2011 Petitioner :- Prithavi Respondent :- Smt. Ishrawati And Others Petitioner Counsel :- Krishna Nand Yadav Hon'ble Rajes Kumar,J.
The petitioner is plaintiff in the suit. The suit was filed for the cancellation of the Will. It has been decreed vide order dated 8.9.2003. The defendants filed an application for the recalling of the ex-parte order dated 8.9.2003. The said application has been allowed vide order dated 18.1.2008 on a cost of Rs.200/-. When the defendants could not deposit the cost, the order dated 18.1.2008 has been recalled by order dated 19.4.2008. Against the said order, the respondents filed an appeal, which has been dismissed on 5.7.2008.
Learned counsel for the petitioner submitted that the defendants again moved a recalling application which has been dismissed on 30.5.2009. The defendants filed an appeal against the order dated 19.4.2008 concealing the fact that the appeal against the said order has already been dismissed. The appellate authority has allowed the appeal against the order dated 19.4.2008. He submitted that once the appeal has already been dismissed against the order dated 19.4.2008, the further appeal filed by the defendants-respondents was not maintainable and the order is patently illegal.
The matter requires consideration.
Issue notice to respondent nos. 1, 2 and 3 returnable at an early date. The petitioner may take steps to serve the respondents within a week.
List in the week commencing 11.7.2011.
Till the next date of listing, the operation of the appellate order dated 19.11.2010 passed by the Additional District Judge, Mahrajganj in Civil Appeal No. 44 of 2010 ( Smt. Ishrawati and another Vs. Prithvi and another) shall remain stayed.
Order Date :- 29.4.2011 OP